What School Desegregation Teaches Affirmative Action

Abstract

This article considers the claims of the dissenting Justices in Grutter v. Bollinger that the majority's approach to strict scrutiny was both novel and wrong. The article argues that the majority's decision to defer to education officials when applying strict scrutiny is far from new and not nearly as dangerous as claimed.

In making this argument, the article examines affirmative action through two lenses rarely connected to affirmative action: school desegregation and federalism. The Grutter Court's strict scrutiny analysis is comparable in many respects to school desegregation jurisprudence, crafted in large part by the very Justices dissenting in Grutter. Similarly, federalism principles strongly supported elsewhere by the Grutter dissent provide some justification for Grutter's approach to strict scrutiny. Yet, school desegregation jurisprudence also demonstrates good reason to be cautious in applying federalism principles to Equal Protection Clause jurisprudence.

This Article ultimately comes to support Grutter's notion of deference. The judiciary certainly has limited expertise in educational policy and limited success in affecting social change. As a practical matter, defendants must have some authority in constitutional decision making.

Keywords: School desegregation, affirmative action, equal protection

JEL Classification: K42